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District Court 24 April 2008

R v Samuel BARRAZ

[2008] NSWDC 93

Fraud & dishonesty
CRIMINAL LAW SENTENCE FORMS 1 PROCEEDS OF CRIME FALSE INSTRUMENT

Citation: R v Samuel BARRAZ [2008] NSWDC 93
Court: District Court of New South Wales
Date: 24 April 2008
Judge(s): Berman SC DCJ

Background

The offender, a Brazilian-born man living in Australia, was sentenced following guilty pleas to five offences arising from a year-long scheme of fraudulent online loan applications. He targeted credit unions and other finance institutions by impersonating other people and falsely representing that loans were sought to purchase motor vehicles. The scheme required fabricated documents and procured false identities, and it drew in co-offenders.

The five indictment counts represented only a portion of the offender's total criminality. Each of the three proceeds of crime counts carried Form 1 notices listing a further fourteen or fifteen related offences, bringing the total number of offences to approximately forty-nine across the scheme's duration. Through this conduct, the offender obtained $153,000, which he spent on gambling, drugs, and alcohol, and used in part to pay co-offenders.

A significant aggravating feature was that the offender committed these offences while subject to bonds for earlier, similar fraud matters. The court treated this as a serious breach of the trust and leniency the court had previously extended to him.

  • What sentence was appropriate for three offences of knowingly engaging in transactions with the proceeds of crime and two offences of using copies of false instruments?
  • What weight should be given to the guilty pleas, entered at the earliest opportunity, by way of a utilitarian discount?
  • Whether claimed mitigating factors applied, including co-operation with authorities under ss 22A and 23A of the Crimes (Sentencing Procedure) Act 1999, prospects of rehabilitation, and alleged good character.
  • How partially accumulative sentences should be structured to reflect the principle of totality across a lengthy course of offending.
  • Whether special circumstances existed to justify a departure from the standard ratio between non-parole period and head sentence.

Decision

The court applied a 25 per cent discount to the sentences to reflect the utilitarian benefit of early guilty pleas, consistent with R v Thomson & Houlton (2000) 49 NSWLR 383. The offender's background, including a disrupted childhood in Brazil, difficult family relationships, and a significant relationship breakdown in 2002 that preceded his slide into drug, alcohol, and gambling dependence, was acknowledged as contextually relevant, though it did not substantially reduce the sentence given the scale and deliberateness of the offending.

Several claimed mitigating factors were rejected. The discount under s 23A for assisting authorities did not apply because police already possessed the information the offender provided. The s 22A discount for co-operation at the time of arrest was also declined: the court read that provision as applying only where a trial has taken place, and in any event the offender's conduct amounted to no more than not obstructing a lawful search. The claim of good character was rejected on the basis that the offender had prior fraud convictions and was on multiple bonds at the time of offending. The court declined to find a reasonable prospect of rehabilitation, noting the onus lay on the offender to establish this on the balance of probabilities and it had not been discharged.

The court identified several aggravating features: the offending occurred while the offender was subject to bonds for similar conduct; co-offenders were recruited; the scheme was sustained and deliberate over approximately one year; and the proceeds were substantial and tax-free. General deterrence was treated as a significant consideration given the nature of online fraud schemes, which are difficult to detect. Personal deterrence was also emphasised, given the offender had previously been dealt with leniently and had re-offended anyway.

Sentences were structured as partially accumulative rather than wholly concurrent, to properly reflect an extended course of criminality while avoiding a crushing total sentence inconsistent with the totality principle. Special circumstances were found, based on a psychologist's report recommending an extended supervised parole period, justifying a non-parole period that was a smaller proportion of the overall head sentence than would ordinarily apply.

Orders Made

  • Count 1: Fixed term of three years' imprisonment, commencing 18 June 2007.
  • Count 2: Non-parole period of two years with a head sentence of three years, commencing 18 June 2008.
  • Count 4: Non-parole period of one year with a head sentence of three years, commencing 18 June 2009.
  • Counts 3 and 5: Fixed term of two years' imprisonment, commencing 18 June 2007.
  • Effective overall sentence: Five years comprising a non-parole period of three years and a balance of term of two years. Earliest eligible release to parole: 17 June 2010.

Key Takeaways

  • The District Court applied the established 25 per cent utilitarian discount for guilty pleas entered at the first available opportunity, following the Thomson & Houlton principle.
  • Where an offender commits fresh offences while serving bonds for materially similar conduct, the court treated this as a significant aggravating factor warranting a more substantial sentence than might otherwise have been imposed.
  • Under s 23A of the Crimes (Sentencing Procedure) Act 1999, no discount for assisting authorities is warranted where the information provided by the offender was already known to police.
  • Section 22A of the same Act, in the court's view, is directed at cases that have proceeded to trial; it does not apply where the offender's "co-operation" consisted only of not obstructing a lawful police search.
  • Partially accumulative sentences, rather than fully concurrent or fully cumulative ones, were adopted as the appropriate mechanism for reflecting a prolonged and systematic course of criminality while remaining consistent with the totality principle.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A, 22A, and 23A

Cases:
- R v Thomson & Houlton (2000) 49 NSWLR 383